Hines v. Resnick, 2011AP109.

• Court: Court of Appeals of Wisconsin
• Citation: 338 Wis.2d 190,807 N.W.2d 687,2011 WI App 163
• Docket Number: No. 2011AP109.,2011AP109.
• Parties: Melissa M. HINES and William Hines, Plaintiffs–Respondents,United States Department of the Army, Involuntary–Plaintiff, v. Daniel K. RESNICK, M.D., Kirkland W. Davis, M.D. and Richard Kijowski, M.D., Defendants–Appellants.†
• Decision Date: 23 November 2011

2011 WI App 163
338 Wis.2d 190
807 N.W.2d 687

Melissa M. HINES and William Hines, Plaintiffs–Respondents,United States Department of the Army, Involuntary–Plaintiff,
v.
Daniel K. RESNICK, M.D., Kirkland W. Davis, M.D. and Richard Kijowski, M.D., Defendants–Appellants.†

No. 2011AP109.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 13, 2011.Opinion Filed Nov. 23, 2011.

[807 N.W.2d 689]

On behalf of the defendants-appellants, the cause was submitted on the briefs of John J. Glinski, assistant attorney general, and J.B. Van Hollen, attorney general.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Shawn R. Crain of End, Hierseman & Crain, LLC.

Before LUNDSTEN, P.J., HIGGINBOTHAM and BLANCHARD, JJ.

BLANCHARD, J.

[338 Wis.2d 193] The issue in this case is how to interpret the requirement in Wis. Stat. § 893.82(5) (2005–06) ¹ that a notice of claim against a state employee must be “served upon the attorney general at his or her office in the capitol by certified mail.” The issue arises because, as it turns out, no matter how the sender addresses certified mail to the attorney general, the mail is not actually delivered to or received by anyone at the office in the state capitol assigned to the attorney general. Instead, the state follows a procedure under which an authorized agent receives the attorney general's certified mail at a U.S. Post Office branch in Madison, and then delivers it to a single place, the attorney general's Main Street office, and not to the capitol office. This occurs regardless of whether the mail is addressed to the capitol office, the Main Street office, or the attorney general's post office box.

¶ 2 In this case, the state-employed physicians who are the subject of the claim at issue moved to dismiss Melissa Hines' medical malpractice action on the grounds that her certified-mail notice of claim did not comply with Wis. Stat. § 893.82(5) because she addressed it to the attorney general's post office box, and not to the capitol office.² The circuit court denied the physicians' motion, concluding that the notice complied with § 893.82(5). We granted the physicians' petition for leave to appeal the ensuing nonfinal order.

¶ 3 The physicians interpret Wis. Stat. § 893.82(5) as requiring that the address on the notice include the street address of the attorney general's [338 Wis.2d 194] capitol office, that is, the address on the envelope must include the words “114 East, State Capitol.” We conclude, based on the undisputed facts of this case, that the physicians' interpretation is unreasonable. Instead, a notice is properly served if a claimant sends the notice by certified mail addressed to the attorney general at his or her capitol office, Main Street office, or post office box, or any combination of

[807 N.W.2d 690]

those three addresses, assuming that the notice otherwise complies with § 893.82(5).

¶ 4 Accordingly, we affirm the circuit court's order denying the physicians' motion to dismiss. In addition, we conclude that, on remand, the parties may address an issue the physicians raise for the first time on appeal, namely, whether Hines complied with the separate requirement in Wis. Stat. § 893.82(3) that a notice of claim state the time of the event or events giving rise to the claim.

BACKGROUND

¶ 5 The specifics of Hines' medical malpractice complaint are irrelevant to this appeal. It is undisputed that the alleged negligence occurred in the course of the physicians' duties as state employees and, therefore, that the notice of claim provisions in Wis. Stat. § 893.82 apply.

¶ 6 Wisconsin Stat. § 893.82(3) provides, as most pertinent here, that “no civil action or civil proceeding may be brought against any state officer, employee or agent” unless a claimant first timely “serves upon the attorney general written notice of a claim....” Section 893.82(5) requires that the notice “shall be served upon the attorney general at his or her office in the capitol by certified mail.” ³

[338 Wis.2d 195] Hines sent her notice of claim to the attorney general by certified mail, addressed as follows:

J.B. Van Hollen, Attorney GeneralState of Wisconsin Department of Justice17 West Main StreetP.O. Box 7857Madison, WI 53707–7857

¶ 8 The physicians did not allege in their motion to dismiss the malpractice action that any element of this address was inaccurate. Instead, they argued to the circuit court that it was fatally incomplete under Wis. Stat. § 893.82(5) because it did not include the attorney general's capitol building address.

¶ 9 The circuit court permitted Hines to submit additional evidence. The following facts were undisputed:

• Post Office Box 7857 is assigned exclusively to the attorney general's office, and is located at a U.S. Post Office branch in the city of Madison.

• A unit of the state department of administration (DOA) retrieves from the U.S. Postal Service all mail [338 Wis.2d 196] addressed to state agencies and delivers it to state agencies located within the city of Madison.

• Drivers, employed by DOA, who retrieve mail at the Post Office branch addressed to the attorney general have authority to accept certified mail and sign the “green card” receipt as agents for the state.

• Using that authority, DOA drivers sign the green card receipts at the post office.

[807 N.W.2d 691]

• After signing for the certified mail, DOA drivers deliver each item to the state agency named on the mail.

• In the case of the attorney general's certified mail, DOA delivers these items to the attorney general's Main Street office in Madison, regardless of whether the mail is addressed to the attorney general's capitol office, to the Main Street office, to the post office box, or to both the street address and post office box.

• The practice of the U.S. Postal Service and DOA makes it impossible for the acknowledgment or receipt of the attorney general's certified mail to occur at the attorney general's capitol office.

• Hines' attorney sent notice by certified mail and received a green card in return.

• The Wis. Stat. § 893.82 notice of claim form available on the attorney general's web site at times relevant to this case instructed claimants to mail claims to “114 East[,] State Capitol, Post Office Box 7857, Madison, Wisconsin, 53707–7857,” thus reciting the capitol office location, but also referencing the post office box.

• The attorney general's web site elsewhere instructed claimants to address notices to the capitol [338 Wis.2d 197] address, but using the 53707–7857 zip code, thus effectively directing delivery to the post office box.

The circuit court concluded, based on the undisputed facts and the court's analysis of the law, that Hines complied with § 893.82(5). We reference additional facts as needed below.

DISCUSSION

¶ 10 We first interpret the Wis. Stat. § 893.82(5) requirement that a notice of claim be “served upon the attorney general at his or her office in the capitol.” We then turn to the § 893.82(3) statement-of-time issue that the physicians raise for the first time on appeal.

A. Wis. Stat. § 893.82(5) —Service at Capitol Office

¶ 11 As already indicated, the facts relevant to this appeal are undisputed. The interpretation and application of a statute to undisputed facts is a question of law for our de novo review. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ¶ 45, 310 Wis.2d 397, 751 N.W.2d 736.

1. Rules of Statutory Interpretation

¶ 12 Statutory interpretation begins with the language of the statute, and if the meaning of the statute is plain, we ordinarily stop there. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. At the same time, however, courts “may construe a clear and unambiguous statute ‘if a literal application would lead to an [338 Wis.2d 198] absurd or unreasonable result.’ ” State v. Delaney, 2003 WI 9, ¶ 15, 259 Wis.2d 77, 658 N.W.2d 416 (quoting Coca–Cola Bottling Co. v. La Follette, 106 Wis.2d 162, 170, 316 N.W.2d 129 (Ct.App.1982)). It is a “fundamental” rule of statutory interpretation that courts must avoid interpreting statutes in a way that produces absurd or unreasonable results. Lake City Corp. v. City of Mequon, 207 Wis.2d 155, 162, 558 N.W.2d 100 (1997); see also Kalal, 271 Wis.2d 633, ¶ 46, 681 N.W.2d 110.

2. Interpretation and Application of Wis. Stat. § 893.82(5)

¶ 13 Wisconsin Stat. § 893.82(5) requires that a notice of claim must be “served upon the attorney general at his or her office in the capitol by certified mail.” We begin by observing that under the literal terms of § 893.82(5), the following event must occur: a certified mail notice

[807 N.W.2d 692]

is delivered to the attorney general (or, of course, an authorized agent) at the attorney general's capitol office.

¶ 14 However, the undisputed facts in this case establish that service by certified mail to the attorney general's capitol office never occurs, and cannot occur, regardless of how a claimant addresses a notice, or what physical location the claimant has in mind as its destination. And, obviously, a claimant cannot comply with the statute by hand delivering a notice to the attorney general's capitol office because such service would not comply with the certified mail requirement. Thus, the best any claimant can achieve is delivery of the certified mail notice to the attorney general's Main Street office.

¶ 15 The physicians assert that it is possible for a claimant to comply with the statute, but they do so by relying on a fiction. The fiction is that notices including “114 East, State Capitol” are “served” by certified mail [338 Wis.2d 199] on the attorney general “at his or her office in the Capitol,” despite the fact that those notices are not delivered to the capitol. Simply asserting that service by certified mail occurs at the attorney general's capitol office, when it does not, is a meritless argument.

¶ 16 Enforcing literal compliance with a statute when literal compliance is...